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NAVY | DRB | 2005_Navy | ND0501376
Original file (ND0501376.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AZAN, USNR
Docket No. ND05-01376

Applicant’s Request
The application for discharge review was received on 20050818. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My discharge was inequitable because of the severe punishment based on the incidents leading to the final decision of my discharge. All benefits were stripped based upon prior incidents leading to captains mast and two advancements to third class petty officer were denied upon the decision finalized in captains mast.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Evaluation Report & Counseling Record (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010918             Date of Discharge: 20040713

 Length of Service (years, months, days):

         Active: 02 09 24
         Inactive: 00 00 02

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 19

 Years Contracted: 8

 Education Level: 12                                 AFQT: 68

 Highest Rate: AZAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)     Behavior: 2.0 (2)                 OTA : 2 .91
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

000920:  Commenced active duty for a period of 5 years

020807:  Retention Warning: Advised of deficiency (CO’s NJP on 010802 for violation of UCMJ Article 86, Unauthorized absence; Article 91, disobedience; Article 92, Orders violation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020807:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 91: Disobedience; violation of UCMJ, Article 92: Orders violation [Extracted from Administrative Counseling/Warning dtd 020807].
        
031205:  Retention Warning: Advised of deficiency (Unauthorized absence on or about 031016.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
031205:  NJP for violation of UCMJ, Article 86: Absence without leave. Date of offense 031016.
         Award: Extra duties for 14 days (suspended for 6 months). No indication of appeal in the record.
040606:  NJP for violation of UCMJ, Article 86: Absence without leave. Date of offense 040522.
         Award: Forfeiture of ½ pay per month for 2 months (suspended for 6 months), reduction to E-2. No indication of appeal in the record.

 040713:  DD Form 214: Applicant discharged general under honorable conditions by reason of misconduct pattern of misconduct, per MILPERSMAN 1910-140.
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040713 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The Applicant bears the burden of establishing her issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to a pattern of misconduct, was advised of her rights and provided the opportunity to consult with counsel, and elected or waived each right. The Board presumed that the Commanding Officer, recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Relief denied.

 When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86 (3 specs), 91, and 92 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91 – disobedience, and Article 92 – orders violation.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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